Monday, February 17, 2014

HLR symposium on freedom of the press: Mark Tushnet & Susan Crawford

Harvard Law Review Symposium 2014: Freedom of the Press

Introduction: Mark Tushnet, Reflections on the First
Amendment and the Information Economy

Symposium papers provide an opportunity to speculate about
1A issues in modern information economy, which is different from the info economy
in 1963.His perspective comes from
general constitutional theory, not 1A specifics.Issues like federalism and state action
doctrine do bear on 1A issues.Also
begins with realist/political perspective on structure of constitutional
doctrine/scholarship.

Interest group perspective: there’s something like agency
capture; 1A scholarship differs from other constitutional scholarship in that
scholars of the 1A seem to like the
amendment, which isn’t necessarily true of scholars of the 2d or 4th
Amendment.Liking means something like,
when the scholar hears that a law has been invalidated on 1A grounds, the
presumption is that that’s correct by default; moderately strong reasons have
to be offered why upholding a law is correct. Some 2d or 4th Amendment
scholars think this too, but others think that the Constitution would be better
without them; that changes the scholarship, including who gets attracted to
doing work in the field. 4th Amendment: you get former prosecutors
and defense attorneys; 1A selection is skewed, and press/media background
attracts people to the field.2d/4th
are dichotomized: you can be pro-gun or anti, pro-privacy or pro-police.

1A scholarship is pluralist, but only on the side of
regulation. Some advocates of consumer protection seek disclosures/restrictions
on some commercial speech; some feminists seek regulation of sexually explicit
material; they develop arguments why those are consistent with the 1A.This ends up like agency capture: the
pro-regulatory argument differs from area to area—different rights (e.g.,
equality) set against rights of expression; categorical or general balancing
(as with consumer protection), while those arguments are met on the other side
with unified arguments for free speech.This is like agency capture in that the interest groups opposing, e.g.,
railroad interests are diverse; some proposed regulations will affect one
group, but other groups will generally be indifferent, and the railroads are
there all the time, opposing each regulation.Each other group is there only sporadically. The RR develop expertise in
making arguments the agency tends to accept, but the diverse groups on the
other side won’t.Roughly the same thing
happens in 1A.Advocates of expansive
interpretations are there all the time, and advocates of particular regulations
aren’t, while they might even oppose some other regulation—proponents of
consumer protection might be nervous about regulation of sexual materials.Content owners want narrow 1A in copyright,
but broad with respect to the content they produce.

Brings out 2 features of 1A scholarship/doctrine: newspapers
and other info disseminators will systematically like 1A and comment favorably
on pro-1A invalidations, except for campaign finance.Looked at Snyder
v. Phelps, Brown v. Entertainment
Merchants, Alvarez, and
commentary basically all said: the underlying behavior is bad, but the Court
was right to find the regulation unconstitutional. Judges, like the rest of us,
get a warm glow from praise, so press’s 1A liking induces judges to uphold 1A
claims.

Like the railroads’ lawyers, proponents of the expansive 1A
know the doctrinal territory, whereas proponents of particular restrictions
don’t.So they can point out how the
argument for a specific regulation is inconsistent with other doctrines, which
they then assert govern.Proponents of
regulation are relegated to arguing that their regulation is
distinguishable.So consumer protection
advocates confront the argument that the SCt has rejected general balancing
tests.Equality advocates confront
arguments about rights v. rights balancing.

1A scholarship is scholarship about the 1A; things could be
otherwise. We could have scholarship about constitutional law, taking the 1A as
its specific focus, as we did when 1A was simply one topic in a general con law
course.Interesting to note the time
when publishers started to ask casebook authors to split out the 1A chapters
for separate publication, and when law schools started to split the structure
course and the rights course; that was a particular historical moment.Treating 1A as a separate field means that
scholarship overlooks generalized skepticism about judicial review, prevalent
in many other areas of constitutional law, e.g. the Commerce Clause.Also systematically undervalues gov’t
interest in regulating speech.

Justifications for allowing courts to displace judgments
made by accountable branches.1A
scholars take such as given and seek to develop reasons—autonomy, but they
don’t grapple with difficulties of distinguishing between autonomy arguments
for expression and autonomy arguments for Lochner.
More often, nod in direction of Carolene
Products, but don’t work out a representation theory in detail. Very hard
to explain directly how Vermont legislature, in prohibiting data mining of
prescription info, was attempting to close off the channels of political
change. There are ways to get there, but it takes a lot of work and is
implausible.

Tendency within 1A scholarship and doctrine to disregard the
possibility of generalized skepticism.Justice Breyer’s argument in Alvarez:
a robust assertion of judge’s power to assess legislation in light of the
Constitution independent of congressional judgment about
constitutionality.He thinks there are
better ways of accomplishing what Congress wanted to accomplish, where better
means accomplishing the goals to roughly the same degree without impairing the
1A to the same degree. Judge’s policy perspective on the best way to get
something done.Exemplifies rejection of
skepticism of judicial review. You can find scholars who are skeptical of
judicial review in almost every field but 1A; there’s him and Adrian Vermeule,
and sometimes he’s not sure about Vermeule.

One reason may be that 1A scholars implicitly believe that
some justifications for judicial review are unassailable for all 1A issues, but
there’s still inattention to justifications for regulation.Lingering impulse to say, though we know it’s
not true, that words can never hurt you.Regulation is the product of a democratic process. In Alvarez, Congress made a judgment about
the most effective way of protecting the reputation attached to a military
honor. In other domains, the very fact that Congress has made such a judgment
would carry some weight. 1A scholarship would profit from more systematic
engagement with general constitutional theory.

Panel 1: Susan Crawford, First Amendment Common Sense

The handful of companies that sell high speed internet
access claim that because they own some of the physical facilities over which
EM pulses carry data, and because much of that data is speech protected by the
1A, that they themselves enjoy a 1A right to edit what our experience of the
internet is.That they are just like the
editorial board of the NYT. Thus Congress may make no law restricting their
editorial freedom.Even if they were
editing to disadvantage competitors, or suppress speech w/which they didn’t
agree, restraining that discretion would be presumptively constitutional.

Those transmitting others’ speech from point A to point B
aren’t necessarily 1A actors. But if this argument is taken seriously by a
single court, that’s the victory.If
they are, congressional power to carry out the democratic process will be severely
undermined. Congressional authority to balance incommensurable interests, take
social policies into account, will be subject to constant second guessing by
courts assuming that what they’re dealing with is a 1A problem. But these
issues of info transmission/communications standards have been left to Congress
even in the Lochner era. This is a
get out of jail free card for all regulated industries.Indirect relationship to speech = back off
because of doctrine of constitutional avoidance. Gives them the moral high
ground, erases Chevron deference.
This is Lochner for a fundamental
input into every aspect of American economic life.

If one court accepts this argument, the lobbyists will use
it as a hammer.The idea that Congress
had no authority over health care took on weight by repetition, and that’s the
attempt here.

Her goal: nip that argument in the bud. Don’t take it
seriously.Need some moments of common
sense.Create a space for Congress to
act where the speech interests are sufficiently remote, indirect.

Transmitters carry our speech from place to place, advertise
themselves based on speed and cost.No
showing of monopoly power under existing case law is required for that
function, common carriage, to be the providers’ role in American society. It’s
FCC’s obligation to treat them that way if they play that role, which they do.
Precisely because the consequences of according 1A protection to these few
actors are so great, SCt has been careful to warn us against attempting to
recharacterize decisions as speech regulation: FAIR from 2006, where CJ Roberts marches through arguments about
requiring law schools to allow military recruiters campus access. Nothing
inherently expressive about law schools’ role. Schools weren’t speaking, and FAIR applies squarely to network
operators’ arguments.Nothing inherently
expressive about conveying others’ data packets from place to place; nothing
understood as the message sent by the carrier. Providers admit their interests
are purely economic (holding some packets hostage) but want it to be treated as
speech.

What are the gov’t’s interest?Network providers now have market power to
start editing, because market for high speed access is now so concentrated.
Cable has won wired marketplace; 80% of Americans have only one choice.With TWC/Comcast merger, their market power
becomes even stronger.AT&T and
Verizon have market power in wireless. Although their status today is
general-purpose communications networks, they have the power to change the
facts on the ground, start editing and be perceived as editors, and change the
way some court views what they do.They
are seeking newspaper/Miami Herald
status, and now they have the market power to do it. Unless we nip this in the
bud now, they’ll be hard to refute later.

Stuart Benjamin: Basically agree with everything.His article.Small disagreement: empirically, the Court
hasn’t been hung up on terms like common carrier, and has looked at what
alleged speakers actually do. This is how we got the result in Sorrell.If tomorrow, Congress says that Upworthy and Reddit can’t prioritize
their webpages, nothing will turn on characterization as common carrier.If an entity is engaged in pure transmission
of bits, it’s not a speaker whether we call it a common carrier or a
banana.If transmission is speech, then
Ma Bell missed a powerful argument: the ability to not send calls made it a
speaker. That would have been a failed argument and should be now.

Crawford also finds significance in the primarily
(exclusively) economic motive of the carriers. He thinks that’s
irrelevant.Jeff Bezos might have wanted
to make the most money and decided that the Washington Post was a better bet
than an oil derrick, but that doesn’t change anything. His reading of the cases is that in order to
be “speech” under the 1A, you need a speaker seeking to transmit some
substantive message and a listener who can recognize it, and mere transmission
doesn’t qualify. Key case is Turner,
in which all 9 Justices agree that cable operators are speakers because they
engage in the editing function, not just choosing which programs to air, but
choosing which channels to run over their wires.But it wasn’t just transmission. SCt has
never found a substantive communication that was sendable/receivable to be
outside the 1A except for articulated exceptions.

Should give more significance to last few years’
decisions.Sorrell, expanding the scope of the 1A; other cases in which the
Court construes existing exceptions narrowly, such as US v. Stevens, Alvarez, Brown v. Ent’mt Merchants. Alvarez is particularly notable because
the question was whether there was a 1A exception for false statements of fact
generally, and the plurality said no, there are a series of narrow exceptions,
all historically grounded (we aren’t making any more).

For a provider, if it is in fact engaged in substantive
editing and is willing to tell users that, then they will be treated as
speakers for 1A purposes. And that’s huge.Heightened scrutiny for regulations of providers at least when engaged
in that editing.

FedEx transmits speech. No one thinks that FedEx is a
speaker. But imagine that there were a DC delivery company that only delivered
messages to/from Democrats, or Republicans.That’s a speaker, communicating something more than transmission.

Everyone understood that cable companies chose what channels
they chose to give, or the speaker announced that it was speaking. If Comcast
decides to engage in substantive editing function, do they have to say
that?There’s a reasonable argument that
a message that is never communicated is not speech for 1A purposes.Imagine there’s a bulletin board that
secretly deletes messages it doesn’t like, but never tells anyone about the
editing—is that speech for 1A purposes? Reasonable to say that you have to be
willing to tell the world to be covered.

Crawford: 50 years ago, lunch counters used 1A/rights of
association as reason not to comply with antidiscrimination rules. No one took
that seriously. There must be some area of action as gov’t not subject to 1A
second guessing. Roads and communications networks are different/special, as
interstate commerce, that deserves protection against the 1A. Thinks Turner “choosing programs” standard is
silly too. When you’re selling transport, Congress should have power to say
something about that. Gets difficult when same road sells pay TV and internet
access.SCt has deferred to idea that
when you do both, we leave you alone.

Crawford: this isn’t just about net neutrality, but about
anything about economic terms under which they’re obligated to provide
service.Wants to make sure Congress has
leeway to make policy about general purpose communications networks.

Benjamin: true, Turner
scrutiny isn’t that intense. But this is a big deal: FCC knew that if there was
a 1A claim, different arguments had to be made, and marginal proposals might go
by the wayside.

Q: Freedom from/freedom to?

Crawford: a few organizations shouldn’t dominate the speech
of 300 million, but we need to frame the argument.

Q: what about an antitrust rule prohibiting carriers from
providing content.

Crawford: that would be one rule. Nixon White House tried to
separate content and conduit, but couldn’t figure out how to get it through
Congress. But this 1A claim gets in Congress’s way, as does takings claims.

Benjamin: doesn’t think there would be a doctrinal/normative
problem with that.

Caroline Mala Corbin: Chutzpah of corporations: Hobby Lobby, trying to use free exercise
to get out of certain regulations.Is
there something leading to both of these?

Crawford: good lawyers look everywhere to help their
clients. We’ve forgotten the larger democratic principles—because the
communications networks are themselves tied up with speech, there’s a special
role that feels different than Hobby
Lobby.

Mark Tushnet: in both situations, the legislature has said
something about the business model that you’re pursuing. Hobby Lobby: decide to
use corporate form instead of partnership.If your business model is violating the child labor laws, you can’t do
it.What about communication
industries?If your business model is
making money out of insider trading, we know Congress can stop you from using
that business model even though that involves speech.Congress should be able to regulate
communication industry business models.

Crawford: doesn’t want to limit it to antitrust—even in
absence of market power.

Q: if we really believed in the Press Clause, we could solve
many of these problems.

Yochai Benkler: Netflix—we can imagine advertising “you can
get faster Netflix from us” pretty easily, and if that’s true Benjamin’s
framework makes the cable company a 1A-protected speaker. That’s why Crawford’s
argument is broader/more necessary.Requiring
separation of common carriage components from other components must itself be
ok in the info industry—but then can you force a newspaper in a 1-paper town to
carry new entrant on its delivery trucks?

Crawford: Court could make FCC nervous about any effort to
reclassify, but it must act firmly now to inform what courts will do
later.

Benjamin: then every differential pricing model is protected
by the 1A, and he can’t swallow that. Suppose Burger King says “we choose this
supplier over another, and we charge some people more than others, and all
these are part of our expression.” Not every decision to differentiate is a
form of expression.Turner’s argument: we are choosing these channels because we think
they send a particular substantive message.That’s different from saying we prefer Netflix to YouTube.

Benkler: but meat isn’t the same as House of Cards.Turner rationale could be applied.

Benjamin: if you prefer a stream not because you like it
better, but because it pays you more, that’s different.

Crawford: but that’s how cable channels get on.

Benjamin: one thing to say choosing USA Network because you
like it; another to say it will be charged more/will pay more.

Tushnet: Burger King example misleads. Think of a real
common carrier, a railroad, who says it won’t transport people to a right to
life demonstration.They can’t do that:
they’re a common carrier.

Benjamin: if FedEx says it will charge more to some companies
who send documents, fine, but that’s not expression.

Tushnet: it may be part of their expression, but as common
carriers they don’t have an ex ante entitlement to discriminate.

Benjamin: but FedEx isn’t a common carrier. It still won’t
be speech for them to charge more (or less) to big companies anyway.

Q: isn’t it overly optimistic to “nip this in the bud”? As
long as they can develop greater market power and begin to exercise editorial
functions, they can always bring a new case.

Crawford: true. Need correct administrative classification,
and also rejection of 1A argument. Importance of 1A is to give people courage
to do their jobs.

Jack Balkin: Suppose Congress passed §230(c)(2), excusing
provider from liability for filtering/etc.Wouldn’t that suggest that Congress has made a decision to treat this as
1A-protected activity?Treats them as
having editorial rights.Congress is
permitted to design structure ex ante; judicial review arises within that
structure. But when Congress tries to have it both ways, it enables the
argument you’re trying to fight.(RT: I
would think that as to common carriers/pure conduits for data flow like Comcast
as internet provider, § 230 didn’t change/set the standard.)

Benjamin: highlights the importance of drawing the
distinction between kinds of editing. Newspapers, when they choose to charge
more for classified ads based on size, they might try to claim it’s all
speech.But we shouldn’t buy that with
respect to price. Best argument for that is what DC Circuit has done for cable
companies, allowing them to challenge limits on rates they could charge
subscribers—DC Circuit said with no discussion that this implicates the 1A,
which is a mistake.Silly constitutional
straightjacket.

Balkin: we think that Congress passes law and judiciary
draws 1A lines, but Congress created the industry structure first, within which
1A review occurs, which is why reclassification would matter.

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